The memories of a key witness to Ben Roberts-Smith’s alleged involvement in the execution of two Afghan prisoners weren’t the product of false, reconstructed memories, Nine Newspapers lawyers have argued.
Mr Roberts-Smith has appealed to the Full Court of the Federal Court following his defamation lawsuit loss in June last year.
Justice Anthony Besanko last year dismissed the suit after Mr Roberts-Smith sued the Sydney Morning Herald, The Age and Canberra Times in 2018 over reporting of war crime allegations relating to his deployment in Afghanistan.
Justice Besanko found that Mr Roberts-Smith, 45, was involved in the unlawful killing of four prisoners in Afghanistan.
As part of his appeal, Mr Roberts-Smith is disputing findings that he was involved in the unlawful killings of two prisoners at a compound dubbed “Whiskey 108” on Easter Sunday in 2009.
Justice Besanko found that Mr Roberts-Smith was involved in the unlawful killing of two unarmed insurgents at Whiskey 108 after the men emerged from a tunnel.
According to the allegations, Mr Roberts-Smith shot one man in the back and directed another soldier to shoot another prisoner as part of a plan to “blood the rookie”.
The findings were made to the civil standard – on the balance of probabilities – which is below the criminal standard of beyond a reasonable doubt and he has maintained his innocence.
One of the key witnesses to the incident was another soldier, person 40, who gave evidence that he saw two men coming out of the tunnel.
In his 2618-paragraph judgment handed down last year, Justice Besanko did not accept that Person 40’s memories were the result of false reconstructions.
“I did not detect any link between rumours and Person 40’s recollection,” Justice Besanko said.
At trial, Mr Roberts-Smith’s legal team challenged Person 40 about his recollections of two men coming out of a tunnel at Whiskey 108.
In their notice of appeal, Mr Roberts-Smith’s legal team argued that two other soldiers gave inconsistent accounts of how many men emerged from the tunnel.
Nine’s barrister Nicholas Owens SC, told the court on Monday: “It was put to person 40 … that he had come to think that he saw something on that day because somebody had told him that the applicant (Mr Roberts-Smith) had pulled the trigger and killed the insurgent with a prosthetic leg.
“It was put to him that he had seen something on that day and that he had convinced himself of something which was relevant to the rumour that was circulating.”
But Mr Owens said person 40’s evidence was supported by other witnesses.
“Other witnesses… gave unchallenged evidence that on the day of the mission, person 40 was asking questions about two PUCs (persons under control) taken out of the tunnel,” Mr Nicholls said on Monday.
“The idea it could have been some unexplained process … that had caused him to think that there had been two people pulled out of the tunnel when there hadn’t been, is undermined by the other witnesses.”
During the trial, Mr Roberts-Smith’s legal team also seized on the testimony of another soldier, Person 43, who told the court he only saw one person, described as an old man, being removed from the tunnel at Whiskey 108.
Mr Owens said Person 43 gave his testimony in “very clear terms” and his truthfulness was not questioned.
On Monday, Mr Owens argued that Person 43 only gave evidence that he saw one person emerge with his hands raised, but did not exclude the possibility more Afghans were found in the tunnel.
Mr Owens argued that his evidence was bolstered by Justice Besanko’s finding that members of the SAS troop were attending to different matters at the time.
“The evidence, when you look at it as a whole, is plainly sufficient to justify a conclusion that whatever the perspective of differing people, there were two different people that came out of the tunnel,” Mr Owens said.
The hearing before Justices Nye Perram, Anna Katzmann and Geoffrey Kennett will continue on Tuesday.